Defenses To Disparate Treatment Cases

Transcription

1 Defenses To Disparate Treatment Cases Johnson v. Transportation Agency (U.S. 1987) o Facts; issue Plaintiff s prima facie case: race or sex has been taken into account in the employment decision Employer s LNR: the affirmative action plan Plaintiff s pretext showing: the employer s justification is pretextual and the AAP is invalid

2 Johnson (cont.) The Weber analysis A manifest imbalance reflecting an underrepresentation in a traditionally segregated job category? o The difference between the manifest imbalance and prima facie case standards Were Johnson s rights unnecessarily trammeled? The plan was intended to attain, and not maintain, a balanced work force

3 Johnson (cont.) Justice O Connor o Public employer s AAP must satisfy both Title VII and the Equal Protection Clause; there must be a firm basis for belief that remedial action is required o Remedying societal discrimination is not a valid basis for remedial affirmative action o Rejects the Central Assumption Justice Scalia o Rejects the goal of proportionate representation in the workplace and the Central Assumption o Remedying societal discrimination via an AAP violates the EPC o Social attitudes causing women to avoid certain jobs

4 Defenses To Disparate Treatment Cases Affirmative action and the Constitution: (1) remedial and (2) diversity Racial classifications are subject to strict scrutiny o Compelling government interests effectuated by narrowly tailored means Sex classifications: intermediate scrutiny o Important governmental objectives pursued by substantially related means Other classifications: rational basis review o Legitimate government objectives; rationally related means

5 Systemic Disparate Impact Discrimination Disparate treatment... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical... Claims of disparate treatment may be distinguished from claims that stress disparate impact. The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive... is not required under a disparateimpact theory. Teamsters v. U.S. footnote 15 (1977) (casebook p. 101)

6 Systemic Disparate Impact Discrimination Title VII Sec. 703(a)(2): It shall be an unlawful employment practice for an employer to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual s race, color, religion, sex, or national origin.

7 Systemic Disparate Impact Discrimination Griggs v. Duke Power Co. (U.S. 1971) o Facts; issue The equal-employment-opportunity objective of Congress Congress has required the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of a racial or other impermissible classification.

8 Griggs (cont.) The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. An employment practice must be shown to be related to job performance. Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation, and has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.

9 Griggs (cont.) Section 703(h); deference to the EEOC s guidelines Testing devices and mechanisms must demonstrably measure job performance Watson v. Fort Worth Bank & Trust (U.S. 1988): disparate-impact analysis also applies to subjective or discretionary employment practices

10 Systemic Disparate Impact Discrimination Wards Cove Packing Co. v. Atonio (U.S. 1989) o Facts; issue The prima facie case: the proper comparison Disparate-impact causation Step 1: the plaintiff must isolate and identify the specific employment practices allegedly responsible for the observed statistical disparities

11 Wards Cove (cont.) Step 2: the employer must offer a business justification for its use of the practices o The touchstone... is a reasoned review... of the employer s justification ; there is no requirement that the challenged practice be essential or indispensable o Burden of proof in earlier cases should have been understood to mean an employer s production but not persuasion burden. Step 3: plaintiff s showing of equally effective alternative practices o Costs or other burdens are relevant Case remanded; plaintiffs complaint dismissed, 275 F.3d 797 (9 th Cir. 2001)

12 Systemic Disparate Impact Discrimination The Civil Rights Act of 1991 Title VII Section 703(k): current rules for the plaintiff s proof Title VII Section 701(m) Does not apply to ADEA disparate-impact cases (see Smith v. City of Jackson, casebook pp )

13 Title VII Section 703(k) (1)(A) An unlawful employment practice based on disparate impact is established under this title only if (i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national and the respondent fails to demonstrate that the challenged practice is job related for the position in question and is consistent with business necessity; or (ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative practice.

14 Title VII Section 703(k) (B)(i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent s decision making process are not capable of separation for analysis, the decision making process may be analyzed as one employment practice.... (C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of alternative employment practice.

15 Title VII Section 703(k)(1)(A)(i) Step 1: plaintiff demonstrates that [the employer] uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin o Note: multicomponent selection processes; unbundling and bundling (Sec. 703(k)(1)(B)(i)) Step 2: the employer must demonstrate that the challenged practice is job related for the position in question and is consistent with business necessity

16 Systemic Disparate Impact Discrimination Watson v. Fort Worth Bank & Trust (U.S. 1988) Held: disparate-impact analysis applies to subjective or discretionary employment practices The teller position: a lot of money... for blacks to have to count Is a policy of delegated discretion an employment practice?

17 Systemic Disparate Impact Discrimination Word-of-mouth recruiting Employer s failure to provide restroom facilities Resident-only rules English-only rules Hostile work environments

18 Systemic Disparate Impact Discrimination Connecticut v. Teal (U.S. 1982) o The bottom line theory of defense Title VII protects the individual (see, e.g., Manhart) A racially balanced work force does not immunize the employer from liability for specific acts of discrimination. Justice Powell s dissent: absent disparate impact on a group, there can be no disparate-impact violation of Title VII

19 Systemic Disparate Impact Discrimination Dothard v. Rawlinson (U.S. 1977) Women 14 years of age or older: 52.75% of Alabama population, 36.89% of state s labor force, 12.9% of correctional counselors The prima facie case (persons aged in the U.S.) o The height requirement excludes 33.29% of women and 1.28% of men o The weight restriction excludes 22.29% of women and 2.35% of men o Height and weight requirements combined exclude 41.13% of women and less than 1% of men o Justice White s dissent Applicants strength can be tested directly